This is а proceeding begun in the probate court of Saline County for the purpose of assessing a collateral inheritance tax against the estate of James D. Lankford, deceased. The probate court held that the estate was subject to the tax, but upon an appeal to the circuit court of Saline County and a trial therein of the issues de novo, that court found that decedent was not, at the time of his death, a resident of Missouri and therefore his estate was not .liable to this tax, and judgment went in favor оf the estate. Prom this judgment an appeal was taken.
The facts shown in evidence are few and simple. The movant for the assessment of this tax (whom for convenience we shall hereinafter designate as plaintiff) offered the will of James D. Lankford (called herein decedent) as containing a solemn admission of the fact of his residence in this State, and after also offering the appraisement and other formal orders, rested. The apposite provisions of the will of decedent are the first and sixth clauses, which run in pertinent part thus:
*6 “I, James D. Lankford, of Marshall, Saline County, Missouri, formerly of Pueblo, county of Pueblo and State of Colorado, being of sound and disposing mind, revoke all former wills by me made, and now make this, my last will and testament.”
Tbe will further provided in the sixth clause thereof that “in the event of the death of either of said legatees the said Belle Lankford, Paris M. Walker, Marian Garrard or Nancy Hagood leaving children or other descendants surviving them (direct descendants) as heirs, then it is my will that my said trustees shall thereupon and thereafter hold said share of such one so dying for the use and benefit of the children or direct descendants of such one who according to the laws of descent and. distribution of the State of Missouri shall be entitled as heirs of such one to claim such estate.”
It was further provided by other paragraphs of said will that certain trustees to administer further provisions of the will, which provisions are not here pertinent, should be appointed by the circuit court of Saline County, Missouri, or by the judge thereof in vacation, and that the bonds required to be given by the trustees should be made by “some responsible corporation authorized to execute bonds in the State of Missouri as surety.” It was further provided in the eighteenth paragraph of said will that in ease it became necessary to administer the estate of decedent in the probate court such administration should be had “in accordance with said trusts and the proper orders of the probate court and the laws of the State of Missouri.” (Italics ours.)
On the part of the beneficiaries under said will (hereinafter for convenience called defendants) the testimony of but one witness was offered and defendants rested. The whole of the testimony for defendants elicited from the one witness mentioned, is as follows:
“James D. Lankford was my uncle and I was well and intimately acquainted with him during his lifetime. He was born in Saline County, Missouri, and lived here until about thirty years ago, at time which he went to the State of Colorado, took up his residence there, went*7 into business in partnership with his brother, Garrett Lankford, and made Colorado his home. ' This partnership continued until about seven or eight years ago, when it was dissolved. Since that time James D. Lankford, so far as I know, has maintained no permanent home, but has spent a portion of his time in Colorado, Oklahoma, Old Mexico, Kansas and Missouri, probably spending more of his time in Missouri than any other one place. He had large property interests in Oklahoma, Old Mexico, Colorado and Kansas, and would spend a portion of his time each year in these places looking after his interests. He never voted in Missouri or asserted any of the rights of citizenship here since taking up his residence in the State of Colorado thirty years ago. He was never assessed on any property or paid any taxes on any property in Missouri since leaving here thirty years ago. At the time of his death, December 25, 1912, he had been in Marshall, Missouri, with his niece since about the 1st of September, 1912, or about four months.' On election day, in November, 1912, knowing that he was a great admirer of Woodrow Wilson, I asked him if he was not going to vote for his friend Wilson and he said ‘No, I have no vote here.’ He said nothing further in regard to the matter. I did not know of his having any settled home after the dissolution of his partnership in Colorado.”
The court made a special finding of facts upon the one question of whether decedent was or was not at the time of his death a resident of Missouri and held that “James D. Lankford, at the time of his death, had not established his domicile in Saline County, Missouri, and was not a resident of said county within the meaning of the statute in such eases made and provided,” and thereupon rendered-judgment that the estate of decedent was not liable for any tax whatever under the Collateral Inheritance Tax Law. It will be seen therefore that the question of the residence of decedent is the sole question in the case.
If there is any substantial evidence to sustain the judgment below, we are required to sustain it. The findings of fact by the learned trial judge in a jury-waived case at law come to us attended by all of the presumptions of verity which clothe the verdict of a jury (38 Cyc. 1946; 2 R. C. L. 206; Woods v. Johnson,
The only contention that is made whereon is bottomed any conflict in the evidence which would serve to make applicable here the rule of reliance upon the lower court’s finding, is upon the decedent’s statement to his nephew Walker that he (decedent) “had no vote in Missouri.” Clearly this is no cоntradiction, for manifestly decedent had never had a domicile in Missouri since he left it thirty years before, until he came back and made his will in April, 1912. He could not vote in November, 1912, for the very simple reason that he had not 'been domiciled in Missouri for one whole year. So he could truthfully have made the statement attributed to him and yet have been at his death a resident and even a citizen of Missouri. In short, the statement made to the witness Walker by decedent proves nothing, and since the solemn admission made in writing made out a prima-facie case for plaintiff, the judgment should have been for plaintiff, unless some evidence came in on the part of defendants
While not urged upon our attention, we may say in passing that the facts that decedent was not assessed in Saline County and that he paid no taxes therein, are likewise incompetent and of no probative value. If he had paid taxes on personal property such fact would have been competent and of some evidentiary weight; but manifestly the fact that he did not do so can be of no aid to us here and was none to the court below-. Moreover, we take notice that his death occurred too soon after his taking up residence in this State for him to becomе liable to pay taxes upon an assessment made at the earliest date thereafter, which was possible under our taxing statutes. Touching the fact that-he was not assessed in this State the same principle applies. If he had procured an assessment - of his personalty to he made, such fact would have been of probative value as indicating intention, but the fact of nonassessment can be of no evidentiary value, since no inferences touching it, which wholly affect decedent, can possibly bе drawn from it; such failure could have arisen from the inadvertent neglect of the assessor, and certainly we cannot judicially notice that men are accustomed to run after the assessor in order to get their property assessed so that they may pay taxes. The evidence shows moreover that decedent was temporarily absent on June 1, 1912, and so continued till September, following.
It has been held here, in conformity with the rule elsewhere, that there is often a distinction between the' word “residence,” which is used in the applicatory statute (Sec. 309, R. S. 1909), and the word “domicile.” [Johnson v. Smith,
But however this may be, no settled rule was followed till some thirty-five years ago. [Lionberger v. Pohlman,
It was said in the very early case of Hartt v. Leavenworth,
The above case was one wherein the evidence adduced on plaintiff’s part was wholly oral,, and while the opinion considered the verdict of a jury, we have seen that the rule is precisely the same as to the рresumptions which we here entertain in a case at law whether the judgment is based on a jury’s verdict, or upon the finding of the court sitting as a jury. [Woods v. Johnson,
In the case of Pipkin v. Allen,
The case of Robbins v. Phillips,
The case of Whitsett v. Ransom,
The ease of Garrett v. Greenwell, 92 Mo. l. c. 125, was an action for damages for burning a threshing machine. The evidence adduced could not therefore have been documentary. Plaintiff being defeated nisi appealed. We reversed and remanded the case, saying: “In ordinary cases, where the action is one at law, this court does not interfere in regard to quéstions of the mere weight of evidence. In this case, however, the evidence is of the most cogent character that Charles Jolioh burned the plaintiff’s machine. This evidence is both
The identical rule upon principle is. announced in dozens of other cases decided by us, a few of which we append: Moore v. Hutchinson,
In the case of State ex rel. v. Guinotte, supra, at page 520, it was said: ‘ ‘ Since then, however, this court has made the same ruling as to the verdict of a jury in will contests as that in ordinary trials, to-wit, that such a trial is an action at law, and that this court would not reverse the judgment because the jury found against the weight of the evidence. [Young v. Ridеnbaugh,
The hooks are full of cases of actions to break wills, wherein, as we have over and over again ruled, the proponent of the will pulls the laboring oar (Carl v. Gobel, 120 Mo. l. c. 295; Goodfellow v. Shannon, 197 Mo. l. c. 278; Craig v. Craig, 156 Mo. l. c. 362), yet time after time we have held that verdicts which overturned or “broke” wills, but which had no substantial foundation in the evidence on which to stand, must be reversed — many times with directions to probate the rejected will. [Thomasson v. Hunt, 185 S. W. l. c. 169; Hayes v. Hayes,
On the other hand the cases which seem to announce a different rule are for the most part we think fairly easy to reconcile with what we say above, and with what the cases hold which we cite. For example, the case of Buford v. Moore, 177 S. W. l. c. 872, was a case at law tried by the court without a jury. Plaintiff won upon evidence which was.contradictory. Held, correctly, that the finding of the trial court upon the facts is conclusive. The learned writer of that opinion did not intend to say that wherе plaintiff recovers in a case' at law tried before the court, the defendant may not challenge the sufficiency of plaintiff’s evidence to make out a case. Hamilton v. Boggess, 63 Mo. l. c. 251, is likewise a case at law tried before the court wherein plaintiff had judgment. There was a mass of contradictory testimony offered,
Certainly the learned jurist who wrote the opinion in the above case did not intend .to say that a defendant who lost below cannot in an appellate court challenge the sufficiency of the evidence offered by plaintiff as the basis of the latter’s recovery. This case contains the very strongest language we have been able to find' upon this point and yet nothing is clearer than that the obiter dictum above quoted is palpably wrong.
The case of Chilton v. Nickey,
There are, as we say above, some old cаses which while regrettably meager as to the reported facts, seem boldly to announce the rule that regardless of the entire lack of evidence on which to sustain the verdict of a jury, or the judgment of a judge sitting in a jury-waived case at law, such verdict or judgment is conclusive upon us on appeal. [Easley v. Elliott,
In the case of Lionberger v. Pohlman, 16 Mo. App. l. c. 397, Thompson, J., who was both a most learned judge and an able writer upon the substantive law, refers to the change in our holdings upon this question, and thus states the rule: ‘ ‘ The rule settled by recent decisions in the Supreme Court and this court is, that where there is no substantial testimony to support the verdict of a jury upon'a given issue, the appellate court will reverse a judgment on the verdict.”
This holding of the above learned judge has been followed by the Courts of Appeals with practical unanimity of decision since the rule announced was promulgated. [Wilkinson v. Western Union Tel. Co.,
It follows, we think, that from the adjudged cases, we may fairly deduce the below conclusions: (a) The findings of fact, either general or special of the trial court sitting in a jury-waived case at law, will have applied to them in an appellate court the same presumptions of verity which attach to the verdict of a jury in a law case (Woods v. Johnson, supra); (b) such findings of fact may be examined by an appellate court if the point that there was insufficient evidence be properly preserved in the motion for a new trial alone (Blakely v. Railroad,
Measured by the above rules, we think the primafacie ease made out by the plaintiff herein was not contradicted by any substantial evidence whatever. It results that the case must be reversed and remanded for a hew trial, if the parties are so advised; upon which, should the proof on defendants’ part be not materially strengthened, the judgment should be for plaintiff. It is so ordered.